Excerpt:.....and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution.
- it is plain that the state evinced an intention that it could certainly proceed to apply the penal provisions of the act against the appellant if it failed to make the return or to meet the demand and -in order to escape from such serious consequences threatened without authority of law, and infringing fundamental rights, relief by way of a writ of mandamus was' clearly the appropriate relief. explanation ii to section 2(g) of the act having been declared ultra vires, any imposition of..........to bombay for sale by the firm to customers at bombay and elsewhere outside madhya pradesh.in that state's sales tax act the definition of 'sale' had been expanded by an explanation which in terms overruled the provisions of the indian sale of goods act of 1930 and provided that'the sale of any goods which are actually in the central provinces and berar at the time when the contract of sale as denned in that act in respect thereof is made, shall, wherever the said contract of sale is made, be deemed for the purpose of this act to have taken place in the central provinces and berar.'under this provision the firm had paid the tax for some years, but it declined to do so for the quarter ending the 31st of march 1951 and, apprehending that steps would be taken by the authorities to realise.....

Judgment:ORDER

Falshaw, J.

1. This is a petition under Article 226 of the Constitution filed by Radhey Mohan Gupta as proprietor of a firm of contractors, M. Mohan and Brothers, challenging the action of the Sales Tax Authorities of Delhi State for the purpose of assessing sums due from the petitioner on account of Sales Tax. The grounds on which these actions are challenged are that the petitioner's business, which consists of executing contracts for Municipal buildings, roads and sanitary works, does not bring him within the scope of the definition of 'dealer' contained in Section 2(c), Bengal Finance (Sales Tax) Act of 1941 as extended to the State of Delhi, and that the transactions carried out by him do not fall within the meaning of the term 'sale'.

2. In a similar case, Civil Writ No. 174D of 1954 decided by me on 12-10-1954, Webbing & Belting Factory Ltd. v. Sales Tax Officer, 1955 Punj 184 (AIR V 42) (A) I held that a writ petition on this point should not be entertained because the petitioner firm had not exhausted its remedies under Ss. 20 and 21 of the Act, Sub-sections (1) & (2) of Section 20 provide for appeal to the Commissioner of Sales Tax against an assessment order and Sub-section (3) provides for revision by the Chief Commissioner of any order passed under the Act either suo motu or on an application to him.

Section 21 contains provisions similar in essence to those of Section 66, Income-tax Act for the reference to the High Court of any question of law arising out of an order passed by the Chief Commissioner in revision under Section 20(3). If the Chief Commissioner refuses to make a reference, the applicant may move the High Court to require the Chief Commissioner to state the case and refer any points of law to this Court.

3. In deciding that case I expressed the opinion that if writ petitions challenging the legality of any particular assessment were to be entertained, Section 21 of the Act practically became a nullity, and I followed a decision on a similar point relating to the East Punjab General Sales Tax Act of 1948 by Kapur J. and myself in the case Bharam Chand & Brothers v. Excise and Taxation Commr., 1953 Punj 27 (AIR V. 40) (B).

4. At the time when these two decisions were delivered, I was not aware of the decision of the Supreme Court in Himmatlal Harilal v. State of Madhya Pradesh 1954 SC 403 (AIR V. 41) (C) certain observations in which might be regarded as running counter to those decisions. That was a case of a Bombay firm dealing in cotton which had Branch Office in the State of Madhya Pradesh through which bales of cotton were collected in that State and sent to Bombay for sale by the firm to customers at Bombay and elsewhere outside Madhya Pradesh.

In that State's Sales Tax Act the definition of 'Sale' had been expanded by an Explanation which in terms overruled the provisions of the Indian Sale of Goods Act of 1930 and provided that

'the sale of any goods which are actually in the Central Provinces and Berar at the time when the contract of sale as denned in that Act in respect thereof is made, shall, wherever the said contract of sale is made, be deemed for the purpose of this Act to have taken place in the Central Provinces and Berar.'

Under this provision the firm had paid the tax for some years, but it declined to do so for the quarter ending the 31st of March 1951 and, apprehending that steps would be taken by the authorities to realise the tax, the firm filed a writ petition in the High Court at Nagpur seeking protection from the enforcement of the Act on the ground that the abovementioned Explanation was ultra vires and illegal.

The High Court, while holding that the impugned provisions of law were illegal because under the Constitution Sales Tax could only be collected in the State where the goods were delivered for consumption, & the Explanation in question had made drastic changes in the rules of the Sale of Goods Act without getting the assent of the Governor-General as required by Section 107, Government of India Act, 1935, refused to grant a writ on the ground that a mandamus issued only to compel an authority to do or abstain from doing some act, that it was seldom anticipatory and certainly never issued where the action of the authority was dependent on some action of the petitioner whereas in the present case the petitioner had not even made his return and no demand for the tax could be made from him.

The Supreme Court, holding that the High Court had rightly held that the impugned provisions of law are ultra vires, held that the writ should have been issued to restrain the authorities from imposing or authorising imposition of the Sales Tax on the firm.

5. In the course of arguments on behalf of the State the point was raised that the firm ought to have had resort to the remedies provided under the Sales Tax Act. This was dealt with in the following passage:

'It is plain that the State evinced an intention that it could certainly proceed to apply the penal provisions of the Act against the appellant if it failed to make the return or to meet the demand and -in order to escape from such serious consequences threatened without authority of law, and infringing fundamental rights, relief by way of a writ of mandamus was' clearly the appropriate relief.

In Mohd. Yasin v. The Town Area Committee Jalalabad, 1952 SC 115 (AIR V. 39) (D) it was held by this Court that a licence fee on a business not only takes away the property of the licencee but also operates as a restriction on his fundamental right to carry on his business and therefore if the imposition of a licence fee is without authority of law it can be challenged by way of an application under Article 32, a fortiori also under Article 223.

These observations have apposite application to the circumstances of the present case. Explanation II to Section 2(g) of the Act having been declared ultra vires, any imposition of Sales Tax on the appellant in Madhya Pradesh is without the authority of law and that being so a threat by the State by using the coercive machinery of the impugned Act to realise it from the appellant is a sufficient infringement of his fundamental right under Article 19(l)(g) and it was clearly entitled to relief under Article 226 of the Constitution.

The contention that because a remedy under the impugned Act was available to the appellant it was disentitled to relief under Article 226 stands negatived by the decision of this Court in The State of Bombay v. United Motors (India) Ltd.. 1953 SC 252 (AIR V 40) (E), above referred to. There it was held that the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the Court with an allegation that his fundamental right had been infringed and sought relief under Article 226. Moreover, the remedy provided by the Act is of an onerous and burdensome character. Before the appellant can avail of it he has to deposit the whole amount of the tax. Such a provision can hardly' be described as an adequate alternative remedy.'

6. In spite of these observations, however, I do not consider that this case can be regarded as an authority for the proposition that any person who wishes to challenge an assessment to Sales Tax under the legislation of his own State, even if he raises the point that the transactions on which the tax is sought to be levied do not fall within the definition of the word 'sale', is entitled to take the short cut of coming to the High Court with a petition under Article 226 Instead of exhausting the remedies provided in the Act, particularly when these remedies are of a comprehensive character like the remedies provided in the Delhi Act.

7. In the present case the petition contains noallegation whatever that any fundamental right ofthe petitioner has been infringed, and the DelhiAct apparently differs from the Madhya PradeshAct, at any rate on the point that in connectionwith an appeal filed under Section 20(1) all that is required as a prerequisite of the entertainment of an appeal is the depositing by the appellant of suchamount of the tax as he admits to be due from him,and not the whole of the tax as assessed.

8. There is also another reason why I consider that the present petitioner should proceed to avail himself of the remedies provided by the Act and in due course, if so advised, take steps to have a case stated and a reference made on the legal aspect of the matter by the Chief Commissioner. I find that neither from the description of the petitioner's business given in the petition nor from the reply filed on behalf of the authorities is it at all possible to form any clear picture of the exact nature of the transactions regarding which the legality of the imposition of Sales Tax is challenged and in my opinion before any decision could possibly be given on this point, a clear and comprehensive statement of the case is necessary such as presumably would be made available in case of a reference under Section 21. I thus do not see sufficient reason to interfere by way of any order under Article 226 and dismiss the petition, but leave the parties to bear their own costs.